Opinion
Delivered May 11, 1992
We have before us a motion to amend the Arkansas Plan of Specialization adopted by Per Curiam order on July 12, 1991. See Per Curiam, 276 Ark. 660, 637 S.W.2d 589 (1982). In addition, we have a motion to adopt regulations for the purpose of implementing that plan. Both of these motions were combined in a pleading filed on behalf of the Arkansas Board of Legal Specialization on July 7, 1989. We have previously acknowledged receipt of earlier proposed regulations. See Per Curiam, 283 Ark. 561, 672 S.W.2d LIII (1984). However, we never formally adopted the regulations for implementation which were filed in 1984.
In 1985, by Per Curiam order, we approved standards for certification as specialists in tax law. Amendments to Code of Professional Conduct and Canons of Judicial Ethics, 284 Ark. 585, 682 S.W.2d LVIII (1985). Since that date, the Arkansas Board of Legal Specialization has issued certificates for tax law specialists, after appropriate examination and certification. In addition, the tax law specialty committee has raised and maintained funds to finance the overall costs of administration of the specialization plan. These funds are now being held in a special account subject to adoption of regulations for implementation of the Arkansas Plan of Specialization. Since 1985, this group of designated specialists has maintained its identification in a professional manner and without any indication that our Court was involved in the means or manner of selecting specialists or otherwise administering the specialization program. We note especially that we know of no effort by the specialists themselves to hold themselves out as having been selected or approved by this Court.
By per curiam order dated June 20, 1988, we continued to give recognition to the Arkansas Plan of Specialization by appointing Christopher Thomas, Esq. as Director of Professional Programs, noting that he shall have "responsibility for implementation and administration of the Arkansas Plan of Specialization." In doing so, we have permitted various members of the Bar who practice in specialized areas such as family law to develop and furnish to the Director of Professional Programs standards for specialization under the auspices of our 1982 per curiam order. In the Matter of the Appointment of the Director of Professional Programs, 296 Ark. 588, 750 S.W.2d LXVII (1988).
We adopted the Arkansas Plan of Specialization in 1982, and in 1989, the Board of Legal Specialization, after considerable work, presented to us the most recent motion to amend the plan and adopt regulations. The Court has given considerable time to the Board's motion and comes to the conclusion that amendments to the Arkansas Plan of Specialization are appropriate. However, the matter of regulating the Plan and administering it should be left to the Board of Legal Specialization rather than this Court.
The motion now before us brings to a head our direct involvement in the legal specialization process. We have again considered the depth of involvement of this Court in that process. As a result of this reassessment we have determined that the Arkansas Supreme Court's role in legal specialization should be limited to the appointment of the members of the Arkansas Board of Legal Specialization and adoption of the Arkansas Plan of Specialization and subsequent amendments thereto, if any. The adoption of implementing regulations and future amendments to the regulations are best left to the Board. Further, the final decision as to whether applicants should be certified in a particular specialty field should also be left with the Board. No Court personnel are to be involved in the implementation or the administration of the specialization program.
In order to effectuate this realignment of responsibility, the Court hereby adopts an amended Arkansas Plan of Specialization (which is attached hereto and made a part of this opinion by reference).
The Court recognizes that the terms of many members of the existing Board of Legal Specialization, the specialization committees, and the advisory commission have expired. In due course, this Court will reconstitute the Board which should then meet at the earliest opportunity and establish individual terms in accord with the amended Plan of Specialization attached to this order Thereafter, the Board shall implement and administer the Arkansas Plan of Specialization, and in doing so, shall have the authority to adopt regulations consistent with the provisions of the amended Arkansas Plan of Specialization. Further, the Board shall take the necessary steps to reconstitute existing specialty committees and the advisory commission. In doing this, all appointees will be considered initial appointments.
By entry of this Per Curiam order, the Court has made moot the motion filed on behalf of the Arkansas Board of Legal Specialization on July 7, 1989.
Turning to the logistical aspects of this realignment of responsibility, the Court makes the following findings:
1. The Arkansas Plan of Specialization adopted in 1982 is wholly superseded by the amended Arkansas Plan of Specialization attached hereto;
2. Subsequent to establishment of a new Arkansas Board of Legal Specialization the Board shall meet at the earliest opportunity and shall be imbued with the authority to do the following: adopt regulations; receive the funds and files now in the possession of the Arkansas Supreme Court Office of Professional Programs; employ an executive secretary; and proceed to implement and administer the Amended Arkansas Plan of Legal Specialization in accordance with the provisions of this Per Curiam order; and,
3. The existing tax specialty committee shall be allowed to continue its administrative responsibilities in connection within the area of tax specialization.
AMENDED ARKANSAS PLAN OF SPECIALIZATION
1. PURPOSE
The purpose of this Plan of Specialization ("Plan") is to assist in the delivery of legal services to the public by:
1.1 Providing greater access by the public to appropriate legal services;
1.2 Identifying and improving the quality and competence of legal services; and
1.3 Providing appropriate legal services at reasonable cost.
2. ESTABLISHMENT OF BOARD OF LEGAL SPECIALIZATION
The Supreme Court hereby establishes a Board of Legal Specialization ("Board"), which Board shall be the authority having jurisdiction over the subject of specialization of lawyers. The Board shall be composed of eight lawyer members appointed by the Supreme Court. The ninth member of the Board shall be the chairperson of the Advisory Commission (described in Section 7) and all other members of the Board shall be lawyers licensed and currently in good standing to practice law in this State. The lawyer members of the Board shall be representative of the legal profession, shall include lawyers who are in general practice as well as those who specialize, and at least one, but not more than two, lawyers shall be appointed from each Court of Appeals district for the State of Arkansas. One of the lawyer members shall be designated annually by the Board as chairperson of the Board. The lawyer members of the Board shall hold office for three years, except those initially appointed who shall serve as hereinafter designated. The lawyer members shall, by random choice, be appointed to staggered terms of office and the initial appointees shall serve as follows: two shall serve for one year after appointment; three shall serve for two years after appointment, and three shall serve for three years after appointment. Appointment to a vacancy among the lawyer members shall be made by the Supreme Court for the remaining term of that lawyer member leaving the Board. Any lawyer member shall be eligible for reappointment to not more than one additional three year term after having served one full three year term. Board members shall continue to serve beyond their designated term until such time as their successor is qualified and appointed by the Court.
Meetings of the Board shall be held at regular intervals, at such time and places and upon such notice as the Board may from time to time prescribe.
3. POWERS AND DUTIES OF THE BOARD
The Board shall have general jurisdiction of all matters pertaining to regulation of specialization and recognition of specialists in the practice of law and, by way of enumeration, not limitation, shall have the power and duty:
3.1 To administer the Plan;
3.2 To designate specialties of law practice and define the scope and limits of such specialties and to provide procedures for the achievement of these purposes;
3.3 To appoint, supervise, act on the recommendations of, and consult with Specialty Committees as hereinafter identified;
3.4 To consult with the Advisory Commission as hereinafter identified;
3.5 To make and publish standards for the recognition of specialists, upon the Board's own initiative or upon consideration of recommendations made by the Specialty Committees, such standards to be designed to produce a uniform level of competence among the various specialties in accordance with the nature of the specialties;
3.6 To recognize specialists or deny, suspend, or revoke, the recognition of specialists upon the Board's own initiative, or upon recommendations made by the Specialty Committees.
3.7 To establish and publish regulations to implement this Plan;
3.8 To propose, and request the Supreme Court to make, amendments to this Plan whenever appropriate;
3.9 To cooperate with other boards or agencies in enforcing standards of professional conduct and to report apparent violations of the Model Rules of Professional Conduct for Lawyers of this State to the appropriate disciplinary authority.
4. RETAINED JURISDICTION OF THE SUPREME COURT
The Supreme Court retains jurisdiction with respect to the following matters:
4.1 Appointing new Board members when terms expire, and, appointing replacement Board members when a vacancy occurs;
4.2 Amending this Plan.
5. PRIVILEGES CONFERRED AND LIMITATIONS IMPOSED
The Board in the implementation of this Plan shall not alter the following privileges and responsibilities of recognized specialists and other lawyers:
5.1 No standard shall be approved which shall in any way limit the right of a recognized specialist to practice in all fields of law. Any lawyer, alone or in association with any other lawyer, shall have the right to practice in all fields of law, even though he or she is recognized as a specialist in a particular field of law;
5.2 No lawyer shall be required to be recognized as a specialist in order to practice in the field of law covered by that specialty. Any lawyer, alone or in association with any other lawyer, shall have the right to practice in any field of law, even though he or she is not recognized as a specialist in that field;
5.3 All requirements for and all benefits to be derived from recognition as a specialist are individual and may not be fulfilled by nor attributed to the law firm of which the specialist may be a member;
5.4 Participation in the program shall be on a voluntary basis;
5.5 A lawyer may be recognized as a specialist in more than one field of law. The limitation on the number of specialties in which a lawyer may be recognized shall be determined only by such practical limits as are imposed by the requirement of substantial involvement and such other standards as may be established by the Board as a prerequisite to recognition as a specialist;
5.6 When a client is referred by a lawyer to another lawyer who is a recognized specialist under this Plan on a matter within the specialist's field of law, such specialist shall not take advantage of the referral to enlarge the scope of his or her representation and, consonant with any requirements of the Model Rules of Professional Conduct for Lawyers of this State, such specialist shall not enlarge the scope of representation of the referred client outside the area of the specialty field; and
5.7 Any lawyer recognized as a specialist under this Plan shall be entitled to advertise that he or she is a "Board Recognized Specialist" in his or her specialty to the extent permitted by the Model Rules of Professional Conduct for Lawyers of this State. In no case shall a Board Recognized Specialist explicitly or implicitly represent that he or she is "recognized" or "certified" as such specialist by the Arkansas Supreme Court.
6. SPECIALTY COMMITTEES
The Board shall establish a separate Specialty Committee for each specialty in which specialists are to be recognized by the Board. The Specialty Committee shall be composed of seven members appointed by the Board, one of whom shall be designated annually by the specialty committee as chairperson of the Specialty Committee. Members of the Specialty Committee shall be lawyers licensed and currently in good standing to practice law in this State who, in the judgment of the Board, are competent in the field of law to be covered by the specialty. Whenever available, one member shall be appointed to a specialty committee from each Court of Appeals district for the State of Arkansas. Members shall, by random choice, be appointed by the specialty committee to staggered terms of office and the initial appointees shall serve as follows: two shall serve for one year after appointment; two shall serve for two years after appointment; and three shall serve for three years after appointment. Appointment by the Board to a vacancy shall be for the remaining term of the member leaving the Specialty Committee. All members shall be eligible for reappointment to not more than one additional three year term after having served one full three year term. Committee members shall continue to serve beyond their designated term until such time as their successor is qualified and appointed by the Board. Meetings of the Specialty Committee shall be held at regular intervals, at such times and places and upon such notice as the Specialty Committee may from time to time prescribe or upon direction of the Board.
Each Specialty Committee shall advise and assist the Board in carrying out the Board's objectives and in the implementation and regulation of this Plan in that specialty. Each Specialty Committee shall advise and make recommendations to the Board as to standards for the specialty and the recognition of individual specialists in that specialty. Each Specialty Committee shall be charged with administering the Plan in its specialty and, with respect to that specialty, shall:
6.1. Recommend to the Board reasonable and nondiscriminatory standards applicable to that specialty;
6.2 Make recommendations to the Board for recognition, continued recognition, denial, suspension or revocation of recognition of specialists, and for procedures with respect thereto;
6.3 Administer procedures established by the Board for applications for recognition and continued recognition as a specialist and for denial, suspension or revocation of such recognition;
6.4 Administer examinations and other testing procedures, if applicable, and investigate references of applicants. If deemed advisable, the specialty committee may seek additional information regarding applicants for recognition or continued recognition as specialists;
6.5 Make recommendations to the Board concerning the approval of and credit to be allowed for continuing legal education courses, or educational alternatives, in the specialty; and
6.6 Perform such other duties and make such other recommendations as may be requested of or delegated to the Specialty Committee by the Board.
7. ADVISORY COMMISSION
The Board shall appoint an Advisory Commission composed of five non-lawyers, one of whom shall be designated annually by the Board as chairperson of the Advisory Commission. The Advisory Commission shall assist and advise the Board as to the public's legal needs and assist the Board in determining how the public can best be served through the specialization program. The members of the Advisory Commission shall hold office for three years, except those members initially appointed who shall serve as hereinafter designated. Members shall be appointed by the Board to staggered terms of office as follows: one shall serve for one year after appointment; two shall serve for two years after appointment; and two shall serve for three years after appointment. Appointment to a vacancy shall be made by the Board for the remaining term of the member leaving the Advisory Commission. Any member shall be eligible for reappointment to not more than one additional three year term after having served one full three year term. Advisory committee members shall continue to serve beyond their designated term until such time as their successor is qualified and appointed by the Board. Meetings of the Advisory Commission shall be held at regular intervals at such times and places and upon such notice as the Advisory Commission shall prescribe or upon direction of the Board. Members of the Advisory Commission shall have the right to attend all meetings of the Board and the chairperson of the Advisory Commission shall be a voting member of the Board.
8. MINIMUM STANDARDS FOR RECOGNITION OF SPECIALISTS
To qualify for recognition as a specialist, a lawyer applicant must demonstrate to the Board, with respect to the specialty, knowledge of the law of this State and competence in the area of specialization, must pay any required fee, and must comply with the following minimum standards:
8.1 The applicant must be licensed and currently in good standing to practice law in this State;
8.2 The applicant must make a satisfactory showing, as determined by the Board after advice from the appropriate Specialty Committee, of substantial involvement in the specialty during a period to be designated by the appropriate specialty committee of not less than three years nor more than five years immediately preceding his or her application, all according to objective and verifiable standards. Such substantial involvement shall be defined as to each specialty from a consideration of its nature, complexity and differences from other fields and from consideration of the kind and extent of effort and experience necessary to demonstrate competence in that specialty. It is a measurement of actual experience within the particular specialty according to any of several standards. It may be measured by the time spent on legal work within the area of the specialty, the number or type of matters handled within a certain period of time, or any combination of these or other appropriate factors. However, within each specialty, experience requirements should be measured by objective standards. In no event shall they be either so restrictive as to unduly limit recognition of lawyers as specialists or so lax as to make the requirement of substantial involvement meaningless as a criterion of competence. Substantial involvement may vary from specialty to specialty, but, if measured on a time spent basis, in no event shall the time spent in practice in the specialty be less than twenty-five percent (25%) of the total practice of a lawyer engaged in a normal full time practice. Reasonable and uniform practice equivalents may be established including, but not limited to, teaching, judicial, and government or corporate legal experience;
8.3 The applicant must make a satisfactory showing, as determined by the Board after advice from the appropriate Specialty Committee, of acquisition of continuing legal education as set by the standards for the specialty, the minimum being an average of 12 hours of credit for continuing legal education, or its equivalent, for each of the three years immediately preceding application. Upon establishment of a new specialty, this standard may be satisfied in such manner as the Board, upon advice from the appropriate Specialty Committee, may prescribe or may be waived if, and to the extent, suitable continuing legal education courses have not been available during the three years immediately preceding establishment of the specialty; and
8.4 The applicant must make a satisfactory showing, as determined by the Board after advice from the appropriate Specialty Committee, of qualification in the specialty through peer review by providing, as references, the names of at least five lawyers, all of whom are licensed and currently in good standing to practice law in this State, or judges, who are familiar with the competence and qualification of the applicant as a specialist. None of the references may be persons related to the applicant or, at the time of application, a partner of or otherwise associated with the applicant in the practice of law. Further, peer review references from other Board Recognized Specialists within the area of specialization sought by the applicant will not be acceptable. The applicant by his or her application consents to confidential inquiry by the Board, or appropriate Specialty Committee, of all such references, the appropriate disciplinary body, and other persons, regarding the applicant's competence and qualification to be recognized as a specialist.
9. MINIMUM STANDARDS FOR CONTINUED RECOGNITION OF SPECIALISTS
The period of recognition as a specialist shall be five years. For administrative purposes, the Board shall determine the effective date of recognition of a specialist. Such effective date may be set for a date after the Board vote wherein an attorney is recognized in an area of specialization. Application for and approval of continued recognition as a specialist shall be required prior to the end of each five year period. To qualify for continued recognition as a Specialist, a lawyer applicant must demonstrate to the Board with respect to the specialty both continued knowledge of the law of this State and continued competence in the affected area of specialization, must pay any required fee, and must comply with the following minimum standards:
9.1 The specialist must make a satisfactory showing, as determined by the Board after advice from the appropriate Specialty Committee, of substantial involvement (which shall be determined in accordance with the principles set forth in Section 8.2) in the specialty during the entire period of recognition as a specialist;
9.2 The specialist must make a satisfactory showing, as determined by the Board after advice from the appropriate Specialty Committee, of acquisition of continuing legal education or its equivalent as set by the standards for the specialty during the period of recognition as a specialist, and
9.3 The specialist must comply with the requirements set forth in Sections 8.1 and 8.4, above.
10. DISCRETIONARY ADMINISTRATIVE AUTHORITY OF BOARD
In accord with Section 3.1 of this Plan the Board shall have discretion in the following areas:
10.1 Establish standards for specialization in any given area of specialization that exceed the minimum standards set out in Section 8 of the Plan;
10.2 In accord with the adoption of regulations as authorized by Section 3.7 of the Plan, the Board may suspend or revoke recognition of a specialist. The Board may take such action upon its own initiative or upon recommendation of the appropriate specialty committee;
10.3 The Board may also, by appropriate regulation, define the obligations of the attorney whose recognition as a specialist has been suspended or revoked, such obligations including, but not limited to: surrender of certificate; and provisions concerning advertising by the attorney who has been suspended or revoked as a specialist;
10.4 The Board, by appropriate regulation, may also allow for the voluntary surrender of status as a Board Recognized Specialist; and,
10.5 The Board, through appropriate regulation, may also recognize areas of specialization submitted to it by entities other than specialty committees as defined by this Plan.
11. RIGHT OF HEARING AND APPEAL TO BOARD
A lawyer who is denied recognition or continued recognition as a specialist or whose recognition is suspended or revoked shall have the right to a hearing before the Board under such rules and regulations as the Board may prescribe.
12. FINANCING THE PLAN
The financing of the Plan shall be derived solely from applicants and participants in the Plan. The Board shall establish reasonable fees in each specialty field in such amounts as may be necessary to defray the expense of administering the Plan, which fees may be adjusted from time to time.